Election: how to pay for post-season play

As long as both candidates can keep the Electoral College reasonably tight - 20 or 30 votes, say - they win through to the post-season (as previously discussed on September 22).

Hordes of lawyers, law students and helpers descend on states where the popular vote is anything near close to file reams with state and Federal courts.

Great craic. And a lot of volunteer and pro bono work. But, inevitably, moolah will be required in quantity.

The New York Times' Glen Justice (!) looks today at the controversy over the use of soft money to meet such expenses.

The FEC has apparently avoided ruling on the subject - apparently, it has not been directly asked to rule; the Bush campaign apparently takes the view that McCain-Feingold does not apply to recounts - the sponsors disagree. But, at the suit of the Kerry campaign, the FEC has ruled that each campaign can use its General Election Legal and Accounting Compliance Fund to pay for recount expenses. According to Justice,

Mr. Bush had about $6 million on hand in his account and Mr. Kerry had about $3.4 million on Aug. 31, according to reports filed by their campaigns.

The FEC site has a list of recent actions - but none refer to the Kerry campaign case, which, according to Justice, was decided on Thursday (September 30).

First, though the campaign wanted answers to two questions, a specific question on GELAC and a general question on the applicability of contributions law to money raised to deal with recounts, the request was structured in such a way as to permit the FEC to dodge the general question.

Clearly, from the campaign's viewpoint, the best thing would be maximum flexibility, except to the extent that such flexibility would work differentially in favour of the Bush campaign. As things stand, Bush has double the funds in his GELAC that Kerry has in his; but I suspect that, if the counts are to be contested in several states, both campaigns will need much more.

In asking the general question, I assume that KE don't think that limiting recount funding to GELAC will give them an advantage over Bush - though the Bush campaign, by its comments to the FEC, clearly favour the least restrictive interpretation.

Second, a timing question arises on GELAC funds: the regulation that governs GELACs, 11 CFR §9003.3 [1] has one head of permissible use that would (at a stretch) fit recount expenses, viz §9003.3(a)(2)(i)(I):

To defray winding down expenses for legal and accounting compliance activities incurred after the end of the expenditure report period by either the candidate's primary election committee, general election committee, or both committees.

The upshot is that expenses incurred between November 2 and December 2 would not be covered by this heading; clearly, if there are recounts and other election disputes, a good deal of expense would be incurred during that month; and, so, unless that timing rule could be waived in some way, the GELAC would be unsuitable as a funding mechanism.

Unfortunately, the FEC - at least, in its draft opinion, does not address this timing issue: it rules that recount expenses fall within the meaning of winding down expenses and evidently think that this ruling is a complete answer to the Kerry campaign's request.

(Notably, in reciting the questions asked of the FEC in the request letter, the draft opinion does not refer to the timing question at all.)

It may be that one is entitled to construe the opinion as a waiver of the timing restriction in §9003.3(a)(2)(i)(I); but that would scarcely be satisfactory.

The BCRA broadened the scope of the law to cover contributions made in connection with, rather than for the purpose of influencing, Federal elections: and this expanded definition is taken by the FEC to include recount contributions.

The NGOs opine (note on p4) that GELACs are themselves not authorised by Federal election law, but decline to follow King Canute on the point!

They also point out that, on October 30 2002, a week before the BCRA's effective date, the Congressional campaign committees made a joint request for an opinion on the effect of the act on recount funds.

The FEC produced two alternative draft rulings - and a day later, the committees' request was withdrawn! (More research needed...)

Will the final FEC opinion, when available online, prove to address the critical timing issue for GELAC-funded expenses? I can hardly wait...